R. v. Ramnarain, 2011 ONCJ 595

COURT FILE No.: Toronto Region Citation: R. v. Ramnarain , 2011 ONCJ 595 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) J. Gorda, ) for the Crown ) — AND — ) ) ) NARESH RAMNARAIN ) A. Sobcuff, ) for the accused ) ) ) ) HEARD: November 25, 2010, March 21, July 18, September 26, November 18, 2011 FELDMAN J.: [ 1 ] Naresh Ramnarain entered not guilty pleas to charges of Operation Impaired and Refuse Breath Sample.

It is alleged the defendant drove his car off a road in Scarborough into a ditch while his ability to drive was impaired by alcohol, later at the police station refusing without lawful excuse to provide a suitable breath sample. [ 2 ] The Crown called a civilian witness, two investigating police officers and a breathalyser technician in support of its case. Mr. Ramnarain testified in his own behalf. [ 3 ] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the onus of proof on the prosecution.

The Evidence [ 4 ] On Oct 12, 2008, at about 9:30 p.m., Glen Romain was working in his office at his home near Beare Rd. and Finch Ave East when he heard loud screeching and then a crash. He saw the defendant’s car in a ditch outside his home. He went out to help and saw that the vehicle’s reverse lights were on indicating some effort by the driver to extricate it. However, the heavily damaged front end of the car was in the ditch and it appears the accused was unsuccessful in moving it out. [ 5 ] Mr. Romain described the weather as dry and clear, with no precipitation. There was no traffic.

It was not quite dark. He told Mr. Ramnarain that he would call 911. He described the defendant as weasy, a little disoriented and in no shape to drive. He checked to see how he was and saw no cuts. [ 6 ] P.C. Shane Penton was dispatched at 9:40 p.m. On arrival ten minutes later, he observed the defendant’s vehicle nose down in a ditch at what he described as an L-intersection with a sharp bend in the road to the north. He said that a car coming westbound towards this intersection, as was Mr. Ramnarain’s, would have to slow down to turn north onto Beare Rd or it would likely end up in the ditch. [ 7 ] P.C.

Victor Lai attended the scene and prepared an accident report. He recalls the weather being dry, the sky clear and the road dry. He told the court there is a sign with flashing lights on top on Finch Ave. 150 metres east of Bear Rd. warning of a sharp turn north and an advisory speed of 20 kmh. From westbound Finch Ave., one can only continue northbound on Beare Rd. toward Steeles Ave. [ 8 ] P.C. Lai noted a solid yellow line turning up Beare Rd, no fog and good visibility.

He measured 65 feet of skid marks leading off the road into the ditch indicating a higher speed, an inference reinforced by the fact that the car ended up at a lower level than the road. The front air bags were deployed. There was approximately $7000 front end damage. [ 9 ] When P.C. Lai spoke to the accused he smelled alcohol on his breath. He did not observe any injuries, although P.C. Sarath Thayalan, who escorted P.C. Penton, saw a small abrasion on the driver’s forehead. This officer also found an unopened case of beer and plastic cups in the car. [ 10 ] P.C.

Penton spoke to the accused who told him he wasn’t injured and refused an ambulance or medical attention. When asked where he was coming from, the defendant said Scarborough, but incongruously pointed east towards Pickering. The officer smelled an odour of alcohol coming from the accused and asked him to step back to the police cruiser. [ 11 ] On the way there, P.C, Penton observed the defendant over a distance of 3-4 car lengths to stumble a little and said he seemed unsteady in the sense of not solidly planting his feet as he walked. The officer told the court that at the scout car Mr.

Ramnarain had to lean on the trunk to support himself. The accused said he had 4 beers. The officer said his eyes were glassy and had a glazed- over look. He arrested the defendant at 9:54 p.m. and placed him in the back of the cruiser. [ 12 ] P.C. Penton read his detainee his rights to counsel from the back of his memo book. Mr. Ramnarain indicated he did not have a lawyer. The officer told him he could have free advice in private from duty counsel. On the way to the station, the defendant

talked a lot and repeatedly asked for his cell phone. The officer said that there was an increasingly strong smell of alcohol coming through the cage separating the front and back seats. [ 13 ] Upon arrival at the police station, the defendant was paraded and again provided his rights to counsel and cautioned. P.C. Thayalan arranged for duty counsel to whom Mr. Ramnarain spoke in private from 10:56 p.m. until 11:00 p.m. After the call, the accused did not raise questions about the advice he had received. [ 14 ] P.C. Penton turned custody of the defendant over to P.C.

Heather, a qualified breathalyser technician and informed his colleague that Mr. Ramnarain had spoken to duty counsel. The officer told the court that at first the accused would not provide a breath sample as he wanted to speak to duty counsel again but was not permitted to do so by P.C. Heather. After a few minutes, the defendant participated in the first breath test that resulted in a reading of 188 mgs, indicating at best that he had alcohol in his system. [ 15 ] A review of the exchange between Mr.

Ramnarain and the breathalyser technician, captured in the video, highlights the resistant and at times contradictory nature of the defendant’s assertions, permitting the inference of manipulation.

At one point, when the officer indicated he would take at least two breath samples, the accused responded, “My lawyer said it was okay”, soon after that telling him, “Can I speak to a lawyer again and make sure it’s ok?”, later on indicating, among other statements, “Yeah but I never asked about the breath test or anything like that” and “My lawyer told me one thing, you are telling me another thing, so can you please tell me what is going on”? [ 16 ] It is of significance in weighing this evidence that Mr. Ramnarain had been through this same process twice in the past.

Counsel submits that because of the dated nature of the prior convictions for related offences diminished inferential weight should be applied to this issue of fact. [ 17 ] Mr. Ramnarain later refused to provide a second sample of his breath until he spoke to duty counsel whom he claimed on the video advised him to give only one sample, and said that he was going to listen to his lawyer.

He asked, “Can I make sure my lawyer says it’s okay to give you two breath samples?” He made this request repeatedly to no avail. [ 18 ] The defendant was later lodged in the cells as the officer-in-charge did not consider him releasable. The Defendant’s Evidence [ 19 ] Mr. Ramnarain is 36 years old and employed. He testified that on Oct 12, he had dinner in Markham with his uncle and until 6:15 p.m. consumed about one ounce of cognac, leaving at 9 p.m., he said, to visit his cousin in Pickering. He described Beare Rd south from Steeles as a poorly lit rural road.

He knows the route well as he has travelled it often. He said that at the time, contrary to police evidence, there was fog in the air and as he was about to make the sharp turn onto Finch Ave. at the speed limit of 50 kmh, an animal darted across his path forcing him to swerve and causing him to end up in the ditch.

He agreed with the suggestion of his own counsel that he reacted to seeing little red eyes on the road, evidence that given the manner of its introduction should be afforded less weight. [ 20 ] However, the direction of the skid marks set out in the police diagram permit the contrary inference that the defendant’s vehicle lost control attempting while travelling too fast to navigate the sharp turn north onto Beare Rd from westbound Finch Ave. Importantly, the length of the skid marks belies the defendant’s assertion that he only veered off into the ditch. [ 21 ] Mr.

Ramnarain said he bumped his head on the steering wheel and felt a little woozy. He attributes his unsteadiness, and possibly red and glassy eyes, to having hit his head. He claims to be unaware he was leaning on the trunk of the scout car. [ 22 ] Mr. Ramnarain testified that duty counsel advised him he was only required to provide a sample of his breath and that he was confused by the technician’s request for two samples, telling the court that on a previous occasion he only provided one sample, a questionable assertion in the context of his prior criminal antecedents.

His claim that he was not hesitant to provide the first sample is not borne out by the video. He did not rule out alcohol as a cause in part of his slurring of words that was apparent on the video, but felt it was as a result of the accident. The Right to Further Legal Consultation [ 23 ] The right to consult counsel more than once is rooted in the purpose of Charter s. 10(

b) that has both an informational and implementational component. The detainee is to be informed of his rights and obligations in addition to obtaining advice as to how to exercise those rights. He must have a reasonable opportunity to do so in order to be able to make a free and informed choice whether to cooperate with the police investigation: R. v.

Sinclair, 2010 SCC 35 , at paras. 23-32 . [ 24 ] Of significance, a further opportunity to consult a lawyer may be “constitutionally required” in circumstances that “generally involve a material change in the detainee’s situation after the initial consultation”: R. v. Sinclair , at para. 43 . [ 25 ] There are a number of changed circumstances that might warrant a second consultation with counsel. Examples are provided in the authorities.

One example set out in Sinclair that is of relevance here involves a situation in which the detainee may not have understood the initial advice of counsel leading to a duty on the police to provide him with a further opportunity to talk to a lawyer. [ 26 ] At the same time, as a matter of caution, the Chief Justice and Charron J. suggest in Sinclair that it was not enough for the accused to assert that he was confused or needed help without an objective basis that additional legal consultation was necessary to help him make a meaningful choice about cooperating with the police.

Put another way, this enhanced right ought not to permit sophisticated or assertive suspects to needlessly delay an investigation or render evidence lost or impossible to obtain. [ 27 ] In R. v. Rusnov, [2009] O.J. No. 4951 (Ont. C.J.) , the accused became unintentionally intoxicated by a combination of alcohol and medication. At the station, he spoke with duty counsel but did not wish his assistance. He became unruly, aggressive and profane in the breath-testing room. He asked to speak with duty counsel numerous times, becoming despondent and even begging to do

so. His requests were denied although there was no urgency in completing the breath tests. Importantly, Justice Tuck-Jackson foundthat his requests were genuine and not intended to frustrate the police investigation. She relied on previous authority to hold that areasonable opportunity to consult counsel included an additional opportunity where necessary to have meaningful contact with andadvice from a lawyer. On a Grant [R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32] analysis, she excluded the breath testresults. Assessment of the Evidence (

a) Witness Reliability [28] I found the civilian and police evidence to be provided in a straightforward manner and without embellishment. None of theprosecution witnesses was serious challenged in cross-examination. I would rely on this evidence. [29] I view the defendant’s evidence differently. Mr. Ramnarian was self-serving in revising material issues of fact that wereproblematic to his case. He suggested that he was confronted by fog in contrast to all other witness who described the weather as clearand dry.

He explained that he veered off the road to avoid hitting an animal, a manoeuvre inconsistent with the presence of skid marksindicating loss of control in the course of a sharp turn at the juncture of Beare Rd. and Finch Ave. East. Although he told the police atthe scene he was fine, in his evidence he attributed his indicia of impairment to bumping his head on the steering wheel and claimed tobe unaware he had to lean on the trunk of the police car. [30] As well, the defendant was less than forthright when he informed the officer he had consumed 3-4 beers, but later testifiedhe only had an ounce of cognac.

He was unreliable in denying that he was hesitant to provide the first breath sample. It is implausible, ashe attests, that he was only required to provide one such sample during a previous arrest for a related offence. I would not rely on hisevidence. (

b) Reconsulting Counsel [31] Mr. Ramnarain initially agreed to provide breath samples but soon after wished to reconfirm duty counsel’s advice in thisregard. He hesitated to provide the first sample but then complied. In refusing to give a second sample, the defendant improbablysuggested counsel advised him to provide only one sample. I view this evidence in the context of his having been through thisinvestigatory process on two prior occasions.

I am not left in reasonable doubt on all the evidence that the defendant was either confusedor that his requests were genuine, rather than directed toward delay or avoidance of the breath testing procedure. [32] In the circumstances, I am not left in reasonable doubt on the evidence that the defendant wilfully refused without lawfulexcuse to provide a breath sample and find no Charter breach of his s. 10(

b) rights. There will be a finding of guilt. Operation Impaired [33] In order to meet its evidentiary burden the prosecution need only prove slight impairment of the accused’s ability to drive amotor vehicle: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed (1994), (SCC), 90 C.C.C. (3d) 160n (S.C.C.). It is important in this regard to note the difference between slight impairment of one’s functionalabilities as distinct from one’s ability to drive. As indicated by Conrad J.A. in R. v. Andrews (1996), 1996 ABCA 23 , 104C.C.C. (3d) 392 (Alta.

C.A.), “in most cases, if the conduct of the accused was a slight departure from normal conduct, it would beunsafe to conclude beyond a reasonable doubt that his ability was impaired by alcohol”. [34] On the evidence, Mr. Ramnarain displayed strong indicia of impairment that included a number of earlier noted physicalsigns, unsteadiness, slurred speech, confusion, excessive talking and obsessive demands, all of which I view in the context of what I inferto be an accident caused in significant part by speed and inattention.

I am not left in reasonable doubt by the evidence that thedefendant’s ability to drive was at least slightly impaired by alcohol. There will be a finding of guilt. Released: November 18, 2011 Signed: “Justice L. Feldman”